Appeal
from the United States District Court for the Western
District of Texas

Before
WIENER, HIGGINSON, and COSTA, Circuit Judges.

WIENER, CIRCUIT JUDGE.

In the
first of the cases consolidated in this appeal,
Petitioners-Appellees Leonardo Villegas-Sarabia
("Villegas-Sarabia") and his father, Leonardo
Villegas, Jr. ("Villegas"), seek review of the
order of the Board of Immigration Appeals ("BIA")
holding that Villegas-Sarabia, a Mexican citizen, is
inadmissible to the United States and ineligible to adjust
his citizenship status because his conviction for misprision
of a felony is a crime involving moral turpitude. In the
second case, the government appeals two aspects of the
district court's decision: (1) that the differing
physical presence requirements for unmarried U.S.-citizen
mothers and such fathers in 8 U.S.C. §§ 1401 and
1409(c) violates equal protection and (2) that the remedy of
the constitutional violation is extending citizenship to
Villegas-Sarabia under 8 U.S.C. § 1409(c). We affirm the
BIA's order in the first case and reverse the district
court's judgment granting citizenship in the second case.

I.
Facts & Proceedings

A.
Factual Background

The
facts of this case are not disputed by the parties. Leonardo
Villegas-Sarabia was born in Mexico on March 16, 1974. At the
time of his birth, his parents were not married, but
Villegas, his father, was a United States citizen, who lived
in the United States from the time he was born in 1955
through 1960, and again from 1965 to the present. In 1974,
when Villegas-Sarabia was born, Villegas was 18 years old and
had only been present in the United States for four years
after he reached 14 years of age.[1] At the time of
Villegas-Sarabia's birth, his mother was a citizen of
Mexico.

Villegas-Sarabia's
parents married when he was 13 years old. He has lived in the
United States continuously since he was a few months old, and
in July 1985, he became a lawful permanent resident of the
United States.

In
November 2011, Villegas-Sarabia was indicted for possession
of a firearm by a convicted felon, in violation of 18 U.S.C.
§ 922. He pleaded guilty in June 2012 and was sentenced
to a thirty-month term of imprisonment in June 2013. Between
his plea and his sentencing, Villegas-Sarabia applied for
citizenship, claiming that he was a United States citizen by
virtue of his father's citizenship. At the time of
Villegas-Sarabia's birth, his citizenship was governed by
the 1970 version of 8 U.S.C. § 1401(a)(7), which granted
U.S. citizenship to:

a person born outside the geographical limits of the United
States and its outlying possessions of parents one of whom is
an alien, and the other a citizen of the United States, who,
prior to the birth of such person, was physically present in
the United States or its outlying possessions for a period or
periods totaling not less than ten years, at least five of
which were after attaining the age of fourteen
years.[2]

This
provision applied expressly to married parents, but it was
made applicable to unmarried parents under §
1409(a).[3] Significant to this case, § 1409(c)
granted an exception to unmarried mothers:

[N]otwithstanding the provision of subsection (a) of this
section, a person born, on or after the effective date of
this chapter, outside the United States and out of wedlock
shall be held to have acquired at birth the nationality
status of his mother, if the mother had the nationality of
the United States at the time of such person's birth, and
if the mother had previously been physically present in the
United States . . . for a continuous period of one
year.[4]

Applying
these statutes, the United States Citizenship and Immigration
Services denied Villegas-Sarabia's citizenship
application, after determining that his father did not
satisfy the residency requirements under § 1401(a)(7).

B.
Immigration Proceedings

In
January 2015, the Department of Homeland Security initiated
removal proceedings based on Villegas-Sarabia's firearms
conviction. In his appearance before the immigration judge
("IJ"), Villegas-Sarabia conceded that he was
admitted to the United States as the child of a citizen and
that he had been convicted of illegal possession of a
firearm, but he denied that he was an alien or that he was
subject to removal.[5] Villegas-Sarabia argued that, because
§ 1409(c)'s discriminatory one-year exception
covered only unmarried U.S.-citizen mothers it
violated equal protection. He insisted that, under a
constitutional reading of the statute, he was entitled to
derivative citizenship.

In
April 2015, the IJ determined that Villegas-Sarabia was not a
citizen and sustained the removal charge. Villegas-Sarabia
responded that he would seek an adjustment of status. The IJ
held that Villegas-Sarabia's conviction for misprision of
a felony was a crime involving moral turpitude
("CIMT"), making him inadmissible to the United
States and ineligible for adjustment of his
status.[6] The IJ explained further that
Villegas-Sarabia could only adjust his immigration status if
he could obtain a waiver of inadmissibility pursuant to 8
U.S.C. § 1182(h). Villegas-Sarabia's firearm
conviction was an aggravated felony, however, statutorily
barring him from seeking such a waiver. The IJ pretermitted
Villegas-Sarabia's application for an adjustment of
status, holding that he had committed a CIMT and therefore
could not attempt to adjust his immigration status without a
waiver. But Villegas-Sarabia's aggravated felony
conviction barred him from seeking such a
waiver.[7]

Villegas-Sarabia
appealed the IJ's decision to the BIA, challenging the
constitutionality of the disparate sex-based residency
requirements of §§ 1401 and 1409(c). He argued in
the alternative that, because misprision of a felony is not a
CIMT, he is not required to obtain a waiver of
inadmissibility to adjust his immigration status. In August
2015, a three-member panel of the BIA dismissed
Villegas-Sarabia's appeal, holding that he was not a
citizen under the statutes that were in place at the time of
his birth and that the BIA lacked jurisdiction to address his
constitutional challenge. The BIA also affirmed the IJ's
holding that misprision of a felony is a CIMT.
Villegas-Sarabia now seeks our review of the BIA's order
holding that misprision of a felony is a CIMT.

C.
District Court Proceedings

In
February 2015, Villegas and Villegas-Sarabia filed a joint
complaint and habeas corpus petition, claiming that
Villegas-Sarabia is a United States citizen and therefore not
subject to detention and removal.[8] They also sought a
declaration that the disparate requirements of 8 U.S.C.
§§ 1401 and 1409 are unconstitutional. The
government filed a motion to dismiss in response to which the
district court applied a heightened level of scrutiny and
held that "the different physical presence requirements
[in §§ 1401 and 1409] violate the Fifth
Amendment's guarantee of equal protection." To
remedy this constitutional violation, the district court
extended § 1409(c)'s one-year continuous presence
requirement applicable to unmarried U.S.-citizen
mothers to unmarried U.S.-citizen fathers,
then held Villegas-Sarabia to be an United States
citizen.[9]

The
government timely appealed and advanced two contentions: The
district court erred (1) in holding that the distinction
between unmarried mothers and unmarried fathers violated
equal protection, and (2) in extending the one-year
continuous residency requirement to unmarried fathers.

II.
Discussion

These
consolidated appeals seek review of the BIA's order and
the district court's ruling on the habeas petition. We
address each in turn.

A. BIA
Order

Villegas-Sarabia
contends that the BIA erred in ruling that misprision of a
felony is a CIMT, so that he should not be required to seek a
waiver of inadmissibility to adjust his status pursuant to 8
U.S.C. § 1182(h). The government urges this court to
defer to the BIA's reasonable decision that misprision of
a felony is a CIMT.

i.
Standard of Review

"When
considering a petition for review, this court has the
authority to review only the BIA's decision, not the
IJ's decision, unless the IJ's decision has some
impact on the BIA's decision."[10] If the BIA
adopts the findings and conclusions of the IJ, this court may
review the IJ's decision.[11] Here, the BIA affirmed the
IJ's findings and conclusions, so we may review both
decisions.

We
review the BIA's legal conclusions de novo but give
"considerable deference to the BIA's interpretation
of the legislative scheme."[12] In appeals addressing
whether a particular conviction is a CIMT, we give
"Chevron deference to the BIA's
interpretation of the term 'moral turpitude' and its
guidance on the general categories of offenses which
constitute CIMTs;" however, we review de novo the
decisions of the BIA addressing whether a particular crime is
a CIMT.[13]

ii.
Subject-Matter Jurisdiction

Pursuant
to 8 U.S.C. § 1252, this court lacks jurisdiction to
review "any final order of removal against an alien who
is removable by reason of having committed a criminal offense
covered in § 1182(a)(2) or 1227(a)(2)(A)(iii), (B), (C),
or (D) of this title, or any offense covered by §
1227(a)(2)(A)(ii) of this title."[14] However, this
court retains jurisdiction to review colorable questions of
law and constitutional claims under 8 U.S.C. §
1252(a)(2)(D). Villegas-Sarabia has raised a colorable
question of law, so we have jurisdiction.[15]

iii.
Analysis

1.
Crimes Involving Moral Turpitude

This
court uses a categorical approach to determine whether a
particular crime meets the BIA's definition of a
CIMT.[16] Under such an approach, this court
"focuses on the inherent nature of the crime, as defined
in the statute . . . rather than the circumstances
surrounding the particular transgression."[17]"When
applying the categorical approach, the statute must be read
as the minimum criminal conduct necessary to sustain a
conviction under the statute."[18] Thus, for
Villegas-Sarabia to have committed a CIMT, the minimum
conduct criminalized under 8 U.S.C. § 4 must constitute
moral turpitude.[19]

The
BIA, through its administrative decisions, has crafted the
following definition of "moral turpitude":

Moral turpitude refers generally to conduct that shocks the
public conscience as being inherently base, vile, or
depraved, and contrary to the accepted rules of morality and
the duties owed between persons or to society in general.
Moral turpitude has been defined as an act which is per se
morally reprehensible and intrinsically wrong, or malum
in se, so it is the nature of the act itself and not the
statutory prohibition of it which renders a crime one of
moral turpitude. Among the tests to determine if a crime
involves moral turpitude is whether the act is accompanied by
a vicious motive or a corrupt mind.[20]

We have
further explained that if a crime's essential element
"involves fraud or deception, "[21] or
"include[s] dishonesty or lying, "[22] it is a
CIMT.[23]

2.
Misprision of a Felony

The
determinative question we must answer is whether
Villegas-Sarabia's conviction for misprision of a felony
under 18 U.S.C. § 4 is a CIMT. The misprision of felony
statute provides:

Whoever, having knowledge of the actual commission of a
felony cognizable by a court of the United States, conceals
and does not as soon as possible make known the same to some
judge or other person in civil or military authority under
the United States, shall be fined under this title or
imprisoned not more than three years, or both.[24]

There
is no binding precedent of this circuit establishing whether
misprision of a felony is a CIMT. Under our case law,
however, deceit is an essential element of misprision of a
felony, and "this [c]ourt has repeatedly held that
crimes including an element of intentional deception are
crimes involving moral turpitude."[25]

Misprision
of felony consists of the following elements: "(1)
knowledge that a felony was committed; (2) failure to notify
the authorities of the felony; and (3) an affirmative step to
conceal the felony."[26] "Mere failure to make
known does not suffice."[27] In Patel v. Mukasey,
a petitioner sought our review of a BIA decision which held
that misprision of a felony was an aggravated felony under 8
U.S.C. § 1101(a)(43)(M)(i).[28] To qualify as an
aggravated felony under § 1101, the offense must
"necessarily entail[] fraud or deceit" and involve
a loss of greater than $10, 000.[29] We concluded that the
final element of misprision of a felony-that the defendant
must commit some affirmative act to conceal the
felony-"necessarily entails the act of intentionally
giving a false impression, i.e., the false
impression that the earlier felony never
occurred."[30]We explained that, because misprision of
a felony requires assertive dishonest conduct, it necessarily
requires an intentional act of deceit.[31] Viewing
Patel in conjunction with this court's repeated
holdings that "crimes including an element of
intentional deception are crimes involving moral turpitude,
" necessarily leads to the conclusion that misprision of
a felony is a CIMT.[32]

Two
panels of this court, (in unpublished and thus
non-precedential opinions), have affirmed BIA decisions that
reached the same conclusion. The panel in Ahmad v.
Holder held that the BIA did not err in holding that a
defendant who was convicted of misprision of a felony had
committed a CIMT.[33] Similarly, the panel in
Aguilar-Cortez v. Gonzales held that the BIA did not
err in holding that the petitioner was "ineligible for
adjustment of status because his conviction for misprision of
felony was a conviction for a crime of moral
turpitude."[34] Although this court has not yet held
bindingly that misprision of a felony is a CIMT, our case law
lends support to the BIA's determination to that effect
in this case.

The
question whether misprision of a felony is categorically a
CIMT, however, has led to a split among other
circuits.[35] In Lugo v. Holder, the Second
Circuit provided a brief history of the existing circuit
split.[36] The petitioner in Lugo sought
review of a BIA decision holding that misprision of a felony
is a CIMT.[37] The Second Circuit declined to rule on
the issue, concluding instead that the question would
"best [be] addressed in the first instance by the Board
in a precedential opinion."[38] The circuit court
explained:

Originally, in [1966], the Board held that misprision of
felony was not a CIMT. The Eleventh Circuit then adopted the
contrary rule in Itani v. Ashcroft,298 F.3d 1213,
1216 (11th Cir. 2002), holding that misprision of felony
is a categorical CIMT. The Board switched to the
Eleventh Circuit's view in Matter of
Robles-Urrea, but the Board's decision in that case
was reversed by the Ninth Circuit. Robles-Urrea v.
Holder,678 F.3d 702, 711 (9th Cir. 2012) (holding that
misprision of felony is not a CIMT). We are thus left to
wonder whether, going forward, the Board wishes to adopt the
Ninth Circuit's rule or the Eleventh Circuit's. We
believe it is desirable for the Board to clarify this matter
in a published opinion.[39]

In an
attempt to clarify this issue, the Second Circuit remanded
the case for further proceedings, but the BIA has yet to
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